Kevin G. Desharnais – Environmental Law & Policy Monitorhttps://www.environmentallawandpolicy.com
Analysis and commentary on developments in environmental and natural resources lawThu, 14 Mar 2019 13:35:40 +0000en-UShourly1https://wordpress.org/?v=4.9.10https://environmentallawandpolicyredesign.lexblogplatform.com/wp-content/uploads/sites/452/2017/08/cropped-cropped-favicon-1-32x32.pngKevin G. Desharnais – Environmental Law & Policy Monitorhttps://www.environmentallawandpolicy.com
3232Trump Administration to Propose Narrowing “WOTUS”https://www.environmentallawandpolicy.com/2018/12/trump-administration-propose-narrowing-wotus/
Mon, 10 Dec 2018 19:02:51 +0000https://www.environmentallawandpolicy.com/?p=4087Continue Reading…]]>The Trump administration is expected to announce a new proposed definition of “waters of the United States” (WOTUS) which would reverse the expansions adopted under the Obama administration’s controversial WOTUS rule, significantly narrowing the number of waterways and wetlands that fall within the jurisdictional scope of the Clean Water Act (CWA).

The CWA prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters,” meaning the waters of the United States or WOTUS. The interpretation of which waters constitutes WOTUS, and whether the term includes waterbodies such as seasonal tributaries which flow only as a result of rainfall or melting snowpack, ephemeral streams, or isolated wetlands not physically connected to larger rivers and streams, has been the subject of contentious debate, including Supreme Court challenges, and multiple Circuit Court and District Court challenges across the country.

In 2015, the Obama Administration’s Environmental Protection Agency (EPA) promulgated an expansive new definition of WOTUS, Final Rule, 90 Fed. Reg. 37,054 (June 29, 2015) (2015 Rule), which is currently the subject of extensive ongoing litigation. The 2015 Rule significantly increased the number of waters afforded CWA protection, providing coverage if a particular waterway or wetland had a “significant nexus” to traditionally jurisdictional waters, in line with Justice Kennedy’s opinion regarding the waters covered by the CWA in Rapanos v. United States, 547 U.S. 715 (2006). The 2015 Rule would have enveloped nearly 60 percent of the nation’s waterbodies.

The Trump administration argues that the 2015 Rule extends the CWA’s reach beyond Congressional intent, and has pursued several avenues to roll back the Obama-era rule. It has adopted a two-step approach to amending the definition, first repealing the definition adopted under the Obama administration (Step 1), and then revising the definition to reflect the principles outlined by Justice Scalia in the Rapanos plurality opinion (Step 2). On June 15, 2018 and June 29, 2018, the EPA and United States Army Corps of Engineers (Corps) issued notices of proposed rulemaking to repeal the 2015 Rule and its definition of WOTUS. A pre-proposal docket for public comment on the appropriate scope of the revised proposal was opened on August 28, 2017, and closed on November 28, 2017. A revised proposal reportedly has been under review by the White House Office of Information and Regulatory Affairs under mandatory pre-publication review. The Trump administration’s EPA and Corps also finalized a rule on February 6, 2018, delaying the effectiveness of the 2015 Rule until February 6, 2020, which was recently set aside by a South Carolina court allowing the 2015 Rule to become effective in roughly half the states.

Recent public remarks from EPA’s deputy water chief, Lee Forsgren, indicate that a Trump-era rule may be released in mid-December 2018. Talking points suggest that, as expected, the new rule would apply the late Supreme Court Justice Antonin Scalia’s concurrence test articulated in Rapanos, extending the CWA only to waters and wetlands with a “continuous surface connection” to nearby rivers and streams that are “physically and meaningfully connected.” The scope of the term “physically and meaningfully connected” may be another point that the Trump-era rule seeks to define. Although the particulars of the proposal are not yet available, it is likely that the new rule would not cover all ephemeral streams and it is expected that the upcoming rule would exclude many of the waterbodies that were incorporated by the expanded definition in the 2015 Rule.

]]>Trump “Fat” Budget Proposal Fleshes Out EPA Cutshttps://www.environmentallawandpolicy.com/2017/05/trump-fat-budget-proposal-fleshes-epa-cuts/
Thu, 25 May 2017 13:16:22 +0000http://www.environmentallawandpolicy.com/?p=3624Continue Reading…]]>On May 23rd, the Trump administration released its full fiscal year 2018 budget proposal, continuing its call for significant funding cuts for many EPA programs. Consistent with the framework outlined in the administration’s “skinny” budget issued earlier in March, the proposal would cut EPA’s overall budget by 31.4 percent, reducing overall spending from $8 billion in 2017 to $5.7 billion for 2018. The plan would eliminate approximately 20 percent of the agency’s workforce, reducing the number of staff from over 15,000 to approximately 11,600, a reduction of approximately 3,800 jobs.

The stated goal of the proposed budget is to focus the agency on the core areas of infrastructure, air, water quality, and chemical safety, while targeting climate programs for significant reduction or elimination. The proposal would completely eliminate funding for the Green Climate Fund, the Global Climate Change Initiative, the UN Framework Convention on Climate Change, and the Intergovernmental Panel on Climate Change, and significantly reduce other monies directed to funding climate efforts. However, the proposal contemplates continued implementation of the Greenhouse Gas Report Rule.

The budget proposal would also eliminate funding for the Clean Power Plan, the Energy Star Program, and specific regional initiatives such as the Great Lakes Restoration Initiative, and the Chesapeake Bay and Puget Sound initiatives. In total, the proposed budget would eliminate more than 50 EPA programs, with projected savings of $347 million over 2017 levels.

Other programmatic areas, while not eliminated, are subject to steep cuts. Federal support for air quality management, including the agency’s air toxics program and grants to states for development of state implementation plans, would be cut by 24 percent. Similarly, the clean air allowance trading program budget would be cut by more than 22 percent.

Funding for EPA research and development (“R&D”) would be cut by 46 percent, while the National Science Foundation R&D budget would be cut by 12 percent. Categorical grants given to state regulatory agencies for enforcement of environmental statutes such as the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act would be cut by 45 percent.

Superfund cleanup funding would be cut by 30 percent and the federal facilities program would be merged into the Superfund program, as an intended administrative cost-saving measure.

With regard to the enforcement, the stated goal is to allow EPA to maintain its core enforcement oversight role, but to eliminate duplication of enforcement actions carried out by the states, focusing federal enforcement efforts on states without delegated authority. Funding for criminal enforcement would be cut by approximately 17 percent, while funding for civil enforcement would be cut by about 20 percent. Funding for the environmental justice program would be eliminated entirely.

As indicated in earlier posts, the administration’s proposed budget will be presented to Congress, where it will be reviewed by both the House and Senate Budget Committees and the Congressional Budget Office.

]]>Trump Administration Proposes Additional Budget Cuts at U.S. EPAhttps://www.environmentallawandpolicy.com/2017/03/trump-administration-proposes-additional-budget-cuts-u-s-epa/
Thu, 30 Mar 2017 17:09:43 +0000http://www.environmentallawandpolicy.com/?p=3517Continue Reading…]]>Continuing its call for reduced spending at U.S. EPA, the Trump administration proposed additional budget cuts at the agency for the remaining 6 months of fiscal year 2017. The administration proposal calls for reductions in spending at EPA totaling $247 million.

Targeted cuts at EPA include a $115 million cut in state grants, equaling a reduction of approximately 10 percent; a $48 million cut for research and development programs, also representing a reduction of approximately 10 percent, focused largely on cuts for climate research programs; a proposed $49 million reduction in spending for the Great Lakes Restoration Initiative; a $30 million spending cut for the Superfund remedial program, and $5 million in cuts to the brownfield grants program.

The cuts at EPA are part of a larger package of cuts intended to partially offset proposed increases in defense spending of $33 billion, including $1.75 billion in cuts from the Energy & Water Development appropriations bill, and $714 million in appropriations for Interior and the Environment. In addition to the $247 million in spending cuts at EPA, the proposed cuts include reductions of $1.43 billion at the Department of Energy, $371 million at the Department of the Interior, and $300 million at the National Oceanic and Atmospheric Agency (NOAA).

The Trump administration released its proposed budget today, calling for steep cuts in funding for U.S. EPA. The plan proposes an EPA budget of $5.7 billion, a reduction of $2.6 billion from current levels, representing a 31 percent cut in overall funding.

The proposed budget eliminates funding for the Clean Power Plan and international climate change programs, reduces funding for the Superfund program, and reduces funding for the Office of Research and Development (ORD) by 48 percent to $250 million. It eliminates more than 50 other EPA programs, including the Energy Star Program, Targeted Airshed Grants, the Endocrine Disruptor Screening Program, and infrastructure assistance to Alaska Native Villages and the Mexico Border. It also eliminates funding for specific regional efforts, such as the Great Lakes Restoration Initiative, the Chesapeake Bay, and other geographic programs.

The budget document calls for funding for the Office of Enforcement and Compliance Assurance (OECA) to be cut by $129 million below 2017 levels. It directs that EPA enforcement activities focus on programs not delegated to the states, while providing oversight to maintain consistency across State, local and tribal programs. It calls for primary responsibility for funding of local environmental efforts and programs to be returned to State and local entities.

The proposed budget cuts are expected to result in 3,200 fewer worker positions at the agency, a 21 percent reduction from the current staffing level of 15,000.

Consistent with President Trump’s message regarding expanded focus on infrastructure, the budget call for increased funding for drinking water and wastewater infrastructure, with a budget of $2.3 billion for State Revolving Funds, representing a $4 million increase over 2017 levels, and $20 million for the Water Infrastructure Finance and Innovation Act program, which is equal to the current funding level.

The administration’s proposed budget will be presented to Congress, where it will be reviewed by both the House and Senate Budget Committees and the Congressional Budget Office.

]]>Initial Budget Discussions Include Significant EPA Cuts and Consolidation of Regional Officeshttps://www.environmentallawandpolicy.com/2017/03/initial-budget-discussions-include-significant-epa-cuts-consolidation-regional-offices/
Tue, 07 Mar 2017 23:08:48 +0000http://www.environmentallawandpolicy.com/?p=3475Continue Reading…]]>EPA has reportedly been instructed by the Office of Management and Budget (“OMB”) to develop a plan for consolidating its ten (10) regional offices into eight (8) as a way to realize efficiencies and reduce costs. The proposed reduction in the number of regional offices is part of the OMB’s broader budget document for fiscal year 2018, which is reported to propose a 25 percent cut to the agency’s overall budget, a 30 percent reduction in state grants, and a 20 percent cut in personnel. The proposals are preliminary, and President Trump’s official budget outline for FY 2018 is expected to be issued March 16th. The federal fiscal year begins on October 1st.

The proposal follows earlier statements of EPA Director Scott Pruitt and the Trump administration that they will elevate the role of the states in managing environmental programs, and reduce activities of regional offices that are duplicative of state programs. President Trump has also issued two executive orders aimed at reducing regulation (see E.O. 13771, which directs agencies to identify two rules for repeal for every new rule they plan to issue, discussed here, and E.O. 13777, Enforcing the Regulatory Reform Agenda, discussed here.) In addition, President Trump has issued an Executive Order calling for a formal review of the Waters of the US (WOTUS) rule, and a similar Executive Order on the Clean Power Plan is expected to be issued this week.